Verstappen v Port Edward Town Board and Others

• Jurisdiction: South Africa
• Judge: Magid J
• Judgment Date: 24 November 1993
• Docket Number: 4645/93
• Court: Durban and Coast Local Division
• Hearing Date: 29 September 1993
• Citation: 1994 (3) SA 569 (D)

Magid J:

The applicant is a co-owner of certain immovable properties which are situate within the area of jurisdiction of the first respondent local authority. I shall refer to these properties (albeit only co-owned by the applicant) as 'the applicant's properties'. The other respondents (the C Minister of Water Affairs and Forestry, the Minister of National Health and Health Services: House of Assembly, and the Administrator of Natal) have been cited because of their interest in the matter, and as none of them is opposing the relief sought by the applicant, I shall hereinafter refer to the first respondent as 'the respondent'.

D One of the applicant's properties is adjacent to a worked-out quarry and the other is described as being 'opposite' thereto. Whatever the position may actually be, it is not in issue that the applicant's properties are fairly near the quarry whose town planning zone is for what is described as 'extractive industry'.

E In about 1985 the respondent started using the quarry area as a site for the disposal of waste. For the past eight years the applicant has sought the assistance of the respondent, the Department of Water Affairs, the Department of National Health and virtually every other authority she could appeal to to cause the respondent to cease using the quarry site for F waste disposal purposes.

It is unnecessary for present purposes to record the history of all those efforts. Suffice it to say that until approximately April 1993 the respondent expressed an intention to seek an alternative site for the disposal of waste emanating from its local authority area. The applicant then came to the conclusion that the respondent had abandoned that G intention and accordingly launched an application, which she alleged was urgent, for the issue of a rule nisi calling upon the respondent and others (though no relief was sought against them) to show cause against the grant of the following relief:

'(a)

That the first respondent is hereby interdicted and restrained from using or permitting the use by any other person of lots 38 H and 39 Banners Rest, Port Edward, for the purposes of the disposal of refuse, litter or any other waste material.

(b)

That the first respondent is directed to take all such steps as may reasonably be necessary to prevent the use by any other person of the said lots for any of the purposes referred to in para (a) I above.

(c)

That the first respondent is directed within 14 days of the date of this order to remove from the said lots any visible, exposed or offensive refuse, litter or other waste material of any nature.

(d)

That the first respondent is directed to pay the costs of this application, save that in the event that any of the other respondents should oppose the application, such respondents are J ordered to pay

Magid J

A the costs of the application jointly and severally with the first respondent.'

The applicant based her claim to relief on two grounds: firstly, that the waste disposal site and the manner in which the respondent managed it constituted a nuisance; and secondly, in the alternative, that the respondent was operating its waste disposal site unlawfully.

B It is common cause that the dispute between the parties as to whether the site or its management constitutes a nuisance is incapable of resolution on the papers.

When the matter came before me I was informed that the parties had agreed C that the following questions would be argued in limine, namely:

'1.

Does the applicant have locus standi in judicio to complain to the Court of the first respondent's failure to obtain a permit as required by the Environment Conservation Act 73 of 1989 ("the Act")?

(2) (i)

In view of the fact that no regulations dealing with waste management have been promulgated under the Act, is the first D respondent presently obliged to obtain a permit to operate a disposal site?

(ii)

Is the first respondent's conduct unlawful in that it is operating a disposal site without a permit?

3.

Has the applicant made out a case that she has suffered an "injury E actually committed" or that she reasonably apprehends that she will do so?

4.

Does the applicant have no other satisfactory alternative remedy?'

During the course of argument I drew attention to the fact that the relief claimed in the notice of motion is couched in final form and accordingly enquired of Mr Salmon, who appeared for the applicant, whether interim or F final relief was now being sought. He indicated that the applicant wanted the question of nuisance settled once and for all and that accordingly, if I answered the questions posed above favourably to the applicant, she would merely be seeking interim relief pending the determination of the question of nuisance by the hearing of oral evidence. In those G circumsances Mr Salmon accepted that the interim relief could not be cast in the broad terms set forth in the notice of motion, because it would be necessary to qualify any order by reference to the admitted failure of the respondent to obtain a permit in terms of the Act to operate its waste disposal site.

The relevant provisions of the Act. H

I shall deal first with the issues set forth in para 2 of the questions submitted for my decision. Subsections (1) and (2) of s 20 of the Act read as follows:

I '(1) No person shall establish, provide or operate any disposal site without a permit issued by the Minister of Water Affairs and that Minister may -

(a) issue a permit subject to such conditions as he may deem fit;

(b) alter or cancel any permit or condition in a permit;

(c) refuse to issue a permit:

Provided that such Minister may exempt any person or category of persons from obtaining a permit, subject to such conditions as he may deem fit.

J (2) Any application for a permit referred to in ss (1) shall be in the form and be

Magid J

A accompanied by such information as the Minister may prescribe.'

The requirement of a permit to 'establish, provide or operate' a waste disposal site is plainly couched in the most peremptory of language. It is, however, common cause that the Minister has not prescribed the...